Exhibit 10.31
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(this “ Agreement ”) is made, entered into and
effective as of December 10, 2008 (the “ Effective
Date ”), between GoFish Corporation (the “
Company ”), and Lennox Vernon, an individual (the
“ Executive ”).
WHEREAS, the Company and the Executive
previously entered into that certain Employment Agreement dated
October 30, 2006 (the “ Original Employment Agreement
”) memorializing the terms and conditions of the
Executive’s employment by the Company in the position of
Chief Accounting Officer and Director of Operations (“
CAO ”); and
WHEREAS, the Company and the Executive desire to
amend and restate the Original Employment Agreement as hereinafter
provided.
NOW, THEREFORE, in consideration of the
covenants and promises contained herein, the Company and the
Executive agree as follows:
1. Previous Employment Agreement;
Employment Period .
(a) This
Agreement supersedes the Original Employment Agreement and any
other prior agreements entered into between the Parties regarding
the subject matter hereof. Nothing in this Agreement
shall affect the validity of the stock option agreements entered
into by and between Executive and Company (the “ Stock
Option Agreements ”). In the event of a conflict between
this Agreement and the Stock Option Agreements, the terms of this
Agreement shall prevail.
(b) The
Company offers to employ the Executive, and the Executive agrees to
be employed by Company, in accordance with the terms and subject to
the conditions of this Agreement. The Company and the Executive
agree that the Executive is employed “at will” which
means that the employment relationship may be terminated by either
party at any time, for any reason or no reason, subject to the
provisions of Section 11 below (the period during which the
Executive is employed by the Company hereinafter referred to as the
“ Employment Period ”). The Executive affirms
that no obligation exists between the Executive and any other
entity which would prevent or impede the Executive’s
immediate and full performance of every obligation of this
Agreement.
2. Position and Duties . During the
term of the Executive’s employment hereunder, the Executive
shall continue to serve in, and assume duties and responsibilities
consistent with, the position of CAO of a public company, which may
include, but are not limited to, serving a key executive role in
the overall leadership, management, and strategic direction of the
Company, assuming responsibility for the overall financial
management of the Company, and managing operations vital to the
organization, including human resources, administration, and risk
management, as the Chief Executive Officer of the Company shall
determine from time to time. The Executive agrees to devote to the
Company substantially all of his working time, skill, energy and
best business efforts during the term of his employment with the
Company, and the Executive shall not engage in business activities
outside the scope of his employment with the Company if such
activities would detract from or interfere with his ability to
fulfill his responsibilities and duties under this Agreement or
require substantial amounts of his time or of his
services.
3. No Conflicts . The Executive
covenants and agrees that for so long as he is employed by the
Company, he shall inform the Company of each and every future
business opportunity presented to the Executive that arises within
the scope of the business of the Company and would be feasible for
the Company, and that he will not, directly or indirectly, exploit
any such opportunity for his own account.
4. Hours of Work . The
Executive’s normal days and hours of work shall coincide with
the Company’s regular business hours. The nature of the
Executive’s employment with the Company requires flexibility
in the days and hours that the Executive must work, and may
necessitate that the Executive work on other or additional days and
hours.
5. Location . The locus of the
Executive’s employment with the Company shall be San
Francisco, California and, from time to time as determined by the
Company, any other locus where the Company now or hereafter has a
business facility.
6. Compensation .
(a) Base Salary . During the term
of this Agreement, the Company shall pay, and the Executive agrees
to accept, in consideration for the Executive’s services
hereunder, pro rata payments, twice a month, of the annual
salary of $160,000, less all applicable taxes and other appropriate
deductions.
The Compensation Committee (the “
Compensation Committee ”) of the Board of Directors
(the “ Board ”) shall also review the
Executive’s base salary annually and shall make a
recommendation to the Board as to whether such base salary should
be increased but not decreased, which decision shall be within the
Board’s sole discretion.
(b) Annual Bonus . During the term
of this Agreement, the Executive shall be entitled to an annual
bonus to be determined in consultation with the Board, as
follows:
(i) If the Executive accomplishes goals to
be determined by the Company’s CEO in consultation with the
Executive during a calendar year, the Executive will be entitled to
an annual bonus of up to 15% of the Executive’s then-current
base salary.
(ii) The annual bonus set forth in Section
6(b)(i) above shall be paid by the Company to the Executive on or
before April 15 th ,
and in any event upon completion of the Company’s audit,
following the calendar year of the Employment Period in which such
bonus was earned.
7. Expenses . During the term of
this Agreement, the Executive shall be entitled to payment or
reimbursement of any reasonable expenses paid or incurred by him in
connection with and related to the performance of his duties and
responsibilities hereunder for the Company, in accordance with the
Company’s policies, as they may be amended from time to time.
All requests by the Executive for payment or reimbursement of such
expenses shall be supported by appropriate invoices, vouchers,
receipts or such other supporting documentation in such form and
containing such information as the Company may from time to time
require, evidencing that the Executive, in fact, incurred or paid
said expenses.
8. Vacation . During the term of
this Agreement, the Executive shall be entitled to accrue, on a
pro rata basis, 20 vacation days per year, as a combination
of Paid Time Off and Paid Vacation allocation. The Executive shall
be entitled to carry over any accrued, unused Paid Vacation days
and Paid Time Off from year to year, subject to Company
policy.
9. Stock Options .
(a) Grant of Option . The Company
previously granted to the Executive an option to purchase an
aggregate of 62,500 shares of the Company’s common voting
stock (the “ Option ”) under the Company’s
2006 Equity Incentive Plan (the “ Equity Incentive
Plan ”). Such grant was evidenced by an Option Agreement
as contemplated by the Equity Incentive Plan. In subsequent years
the Executive shall be eligible for such grants of Options and
other permissible awards (collectively with the Options, “
Awards ”) under the Equity Incentive Plan and such
other stock incentive plans as may be adopted from time to time by
the Company, as the Compensation Committee or the Board shall
determine.
(b) Option Price; Term . The
exercise price of the Option is $1.50 per share, and the term of
the Option is ten years from the date of grant.
(c) Option Vesting and Exercise .
Twenty-five percent (25%) of the Option vested and became
exercisable on the first anniversary of the date of the grant of
the Option. On the last day of each month thereafter, continuing to
the fourth anniversary of the date of the grant of the Option, an
additional one forty-eighth of the Option shall vest, subject to
Section 9(d).
(d) Termination of Service; Accelerated
Vesting .
(i) If the Executive’s employment is
terminated for Cause, as such term is defined below, all Awards,
whether or not vested, shall immediately expire effective the date
of termination of employment.
(ii) If the Executive’s employment is
terminated voluntarily by the Executive without Good Reason, as
such term is defined below, all unvested Awards shall immediately
expire effective the date of termination of employment. Vested
Awards, to the extent unexercised, shall expire one month after the
termination of employment.
(iii) Except as set forth in Section
9(d)(iv), if the Executive’s employment is terminated (i) by
the Company without Cause, as defined below; (ii) by the Executive
for Good Reason, as defined below; or (iii) upon death or
Disability, as defined below, all unvested Awards shall immediately
expire and the vested Awards, to the extent unexercised, shall
expire one year after any such event.
(iv) If the Executive’s employment is
terminated as a result of a circumstance contemplated in Section
11(e)(i)(C), all unvested Awards shall immediately vest and become
exercisable effective on the date of termination of employment, and
to the extent unexercised, shall expire one year after any such
event.
(e) Payment . The full
consideration for any shares purchased by the Executive upon
exercise of the Options shall be paid in cash.
10.
Other Benefits .
(a) During the term of this Agreement, the
Executive shall be eligible to participate in incentive, savings,
retirement (401(k)), and welfare benefit plans, including, without
limitation, health, medical, dental, vision, life (including
accidental death and dismemberment) and disability insurance plans
(collectively, “ Benefit Plans ”), in
substantially the same manner, including but not limited to
responsibility for the cost thereof, and at substantially the same
levels, as the Company makes such opportunities available to all of
the Company’s managerial or salaried executive
employees.
(b) The
Executive’s spouse and dependent minor children will be
covered under the Benefit Plans providing health, medical, dental,
and vision benefits, in substantially the same manner, including
but not limited to responsibility for the cost thereof, and at
substantially the same levels, as the Company makes such
opportunities available to the spouses and dependent minor children
to all of the Company’s managerial or salaried executive
employees.
(c) Until
such time as the Executive becomes covered by Company medical
coverage, the Company shall reimburse the Executive for the
Executive’s medical insurance premiums for coverage currently
in place.
11. Termination of Employment
.
(a)
Death . In the event that during the term of this Agreement
the Executive dies, this Agreement and the Executive’s
employment with the Company shall automatically terminate and a
Separation (as defined in Section 16(k) hereof) shall occur and the
Company shall have no further obligations or liability to the
Executive or his heirs, administrators or executors with respect to
compensation and benefits accruing thereafter, except for the
obligation to pay the Executive’s heirs, administrators or
executors any earned but unpaid base salary, unpaid pro rata
annual bonus, and unused paid time off and vacation days accrued
through the date of death, and to reimburse, pursuant to Section 7,
any expenses incurred through the date of death; provided ,
that nothing contained in this paragraph shall be deemed to excuse
any breach by the Company of any provision of this Agreement. All
payments due hereunder shall be made within 45 days after the
Executive’s death; provided, however, that payment of any
pro rata annual bonus shall be made as specified in Section
11(g). The Company shall deduct, from all payments made hereunder,
all applicable taxes, including income tax, FICA and FUTA, and
other appropriate deductions.
(b) “
Disability .” In the event that, during the term of
this Agreement, the Executive shall be prevented from performing
his duties and responsibilities hereunder to the full extent
required by the Company by reason of Disability (as defined below)
this Agreement and the Executive’s employment with the
Company shall automatically terminate and a Separation (as defined
in Section 16(k) hereof) shall occur and the Company shall have no
further obligations or liability to the Executive or his heirs,
administrators or executors with respect to compensation and
benefits accruing thereafter, except for the obligation to pay the
Executive or his heirs, administrators or executors any earned but
unpaid base salary, unpaid pro rata annual bonus and unused
paid time off and vacation days accrued through the
Executive’s last date of employment with the Company, and to
reimburse, pursuant to Section 7, any expenses incurred through the
Executive’s last day of employment with the Company;
provided , that nothing contained in this paragraph shall be
deemed to excuse any breach by the Company of any provision of this
Agreement. All payments due hereunder shall be made within 15 days
after the date of termination of the Executive’s employment;
provided , however, that payment of any pro rata
annual bonus shall be made as specified in Section 11(g). The
Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions through the last date of the
Executive’s employment with the Company. For purposes of this
Agreement, “ Disability ” shall mean a physical
or mental disability that prevents the performance by the
Executive, with or without reasonable accommodation, of his duties
and responsibilities hereunder for a period of not less than an
aggregate of three months during any twelve consecutive months,
unless otherwise prohibited by law.
(c) “
Cause. ”
(i) At any time during the term of this
Agreement, the Company may terminate this Agreement and the
Executive’s employment hereunder for “Cause.” For
purposes of this Agreement, “ Cause ” shall be
defined as the occurrence of: (A) gross neglect, malfeasance
or gross insubordination in performing the Executive’s duties
under this Agreement; (B) the Executive’s conviction of, or
plea of “guilty” or “no contest” to a
felony under the laws of the United States or of any state thereof,
excluding convictions associated with traffic violations; (C) an
egregious act of dishonesty (including without limitation theft or
embezzlement) or a malicious action by the Executive toward the
Company’s customers or employees; (D) a material breach of
any agreement between Executive and the Company, including a
violation of any provision of Sections 12 and 13 hereof; (E)
intentional reckless conduct that is materially detrimental to the
business or reputation of the Company; (F) material failure, other
than by reason of Disability, to carry out reasonably assigned
duties or instructions consistent with the title of
Chief Accounting Officer (provided that material failure to
carry out reasonably assigned duties shall be deemed to constitute
Cause only after a finding by the Board of Directors, or a duly
constituted committee thereof, of material failure on the part of
the Executive and the failure to remedy such performance to the
Board’s or the committee’s satisfaction within 30 days
after delivery of written notice to the Executive of such finding
setting forth those duties that are not being performed by the
Executive); or (G) Executive’s unauthorized use or disclosure
of the Company’s trade secrets.
(ii) Upon
termination of this Agreement for Cause, the Company shall have no
further obligations or liability to the Executive or his heirs,
administrators or executors with respect to compensation and
benefits thereafter, except for the obligation to pay the Executive
any earned but unpaid base salary, unpaid pro rata annual
bonus, and unused paid time off and vacation days accrued through
the Executive’s last day of employment with the Company, and
to reimburse, pursuant to Section 7, any expenses incurred through
the Executive’s last day of employment with the Company. All
payments due hereunder shall be made within 15 days after the date
of termination of the Executive’s employment; provided,
however, that payment of any pro rata annual bonus shall be
made as specified in Section 11(g). The Company shall deduct, from
all payments made hereunder, all applicable taxes, including income
tax, FICA and FUTA, and other appropriate deductions.
(d)
Change of Control . For purposes of this Agreement, “
Change of Control ” means “Change in
Control” as defined on the date hereof in the Company’s
2007 Non-Quailfied Option Plan.
(e) “
Good Reason .”
(i) At any time during the term of this
Agreement, subject to the conditions set forth in Section 11(e)(ii)
below, the Executive may terminate this Agreement and the
Executive’s employment with the Company for “Good
Reason.” For purposes of this Agreement, “ Good
Reason ” shall mean the occurrence of any of the
following events occurring without Executive’s consent and
resulting in a Separation: (A) the assignment to the Executive of
duties that are materially different from, and that result in a
substantial diminution of, the duties that he assumed on the
Effective Date; (B) a change to the principal place of the
performance of the Executive’s duties to a location more than
50 miles from San Francisco, California without the
Executive’s prior written consent; or (C) material breach by
the Company of this Agreement. A termination of employment by the
Executive shall not be deemed
